WEDNESDAY, FEBRUARY 23, 1977 U.S. SENATE, SELECT COMMITTEE ON INTELLIGENCE, Washington, D.C. The committee met, pursuant to notice, at 4:10 p.m., in room S-407, the Capitol, Hon. Daniel K. Inouye (chairman) presiding. Present: Senators Inouye, Goldwater, Bayh, Stevenson, Hathaway, Huddleston, Morgan, Hart, Moynihan, Case, Garn, Mathias, Pearson, Chafee, Lugar, and Wallop. Also present: William G. Miller, staff director; Howard S. Liebengood, minority staff director; Audrey Hatry, clerk of the committee; Anne Karalekas, Sam Bouchard, Stan Taylor, Jean Evans, Dan Childs, Spencer Davis, Charles Kirbow, Thomas Moore, Michael Epstein, Edward and Harold Ford, professional staff members. The CHAIRMAN. We are now in open session to consider the nomination of the Director of Central Intelligence, Adm. Stansfield Turner. You have before you the copies of the committee report that I had the staff prepare for us. It covers all of the major questions that have been raised in his nominaton, including the matter of keeping his commission during his tenure as DCI. It also refers to Admiral Turner's promise not to seek the offices of Chief of Naval Operations or Chairman of the Joint Chiefs of Staff when these become vacant. At least he will not seek them. But I suppose if the Commander in Chief should call upon him to serve in these offices, he would have to respond accordingly. He has also indicated his willingness to provide this committee with full and timely information on all covert and clandestine collection programs. He has promised to work with this committee in considering new statutory charters for the intelligence agencies, and he has shown, I would say, a real concern, both in his opening statement and in his answers to our questions, for the need to insure that intelligence activities do not adversely affect the constitutonal or legal rights of American citizens. I would like to at this time move that this committee recommend to the Senate that the nomination of Admiral Stansfield Turner as Director of Central Intelligence be confirmed. Senator GOLDWATER. Second. The CHAIRMAN. It has been moved and seconded. (69) 86-073 - 77-6 VOTE ON NOMINATION OF ADM. STANSFIELD TURNER Senator GOLDWATER. Question. The CHAIRMAN. Question. I will call upon the Director to call the roll. The CHAIRMAN. I have a proxy. He votes aye. Senator BAYH. Can we count both of those? Senator STEVENSON. Aye. The CHAIRMAN. I have his proxy. He votes aye. Mr. MILLER. Mr. Morgan. Senator MORGAN. Aye. Mr. MILLER. Mr. Hart. Mr. MILLER. Mr. Moynihan. Mr. MILLER. Mr. Mathias. Mr. MILLER, Unanimous. The CHAIRMAN. The vote is unanimous, and I am pleased to announce that I will submit this nomination immediately to the Senate. Hopefully this can be considered tomorrow by waiving the 3-day rule. Is there any objection to waiving the 3-day rule? [No response.] The CHAIRMAN. Hearing none, I will ask the leadership to schedule this for tomorow. Any further business? [No response.] The CHAIRMAN. The meeting is adjourned. [Whereupon, at 4:15 p.m., the committee recessed subject to the call of the Chair.] ADM. STANSFIELD TURNER'S RESPONSES TO FEBRUARY 28, 1977, WRITTEN INTERROGATORIES SUBMITTED BY THE SENATE SELECT COMMITTEE ON INTELLIGENCE I. CIVIL LIBERTIES A. Currently, one of the important controversies in constitutional law is the question of how the President's authority to conduct foreign intelligence activities meshes with the provisions of the first and fourth amendments. The question has most frequently arisen in terms of wiretaps and foreign intelligence cases. Question 1. Could you explain your views of the nature and extent of Presidential authority and how it is limited by the first and fourth amendments? Answer. The Committee appreciates that this question is best and most properly put to the President and his advisors. For myself, I believe that the President has a constitutional duty to conduct the nation's foreign affairs and that he has certain inherent powers to enable him to fulfill this duty, including the authority to collect foreign intelligence in order to protect the national security. This authority, however, does not, in my opinion, exempt him from the requirements of the first, fourth, or any other amendment to the constitution. Rather the exercise of this authority must be accommodated to the rights of U.S. citizens under these amendments. I do not believe that his power to collect foreign intelligence, including the use of electronic surveillance, is incompatible with these rights. The determination of the proper balance between his power and these constitutional protections has and probably will continue to be the subject of debate, and is ultimately the responsibility of the courts. Question 2. Do you believe the President has the power to conduct warrantless electronic surveillance of Americans at home or abroad for foreign intelligence purposes? Answer. It is my understanding that current judicial decisions permit, or at least do not prohibit, such warrantless surveillance where the target is a foreign power or an agent or collaborator of a foreign power. Of course, such surveillances would be undertaken domestically by the FBI rather than CIA. Question 3. Is it your understanding of the law that if Congress enacts legislation setting standards and conditions for the use of electronic surveillance in foreign intelligence cases, the Executive Branch, including the President, is bound by those standards and conditions? Answer. While appreciating the Committee's concern, I suggest that the Attorney General would be the appropriate official to advise the President in this area. B. Last summer, the Committee and the Senate Judiciary Committee reported S. 3197, a bill to require warrants for electronic surveillance conducted in the United States for foreign intelligence purposes. Question 1. Do you favor such legislation? Answer. Although I have not had a sufficient opportunity to study S. 3197 in detail, in general I support the concept of such legislation, at least insofar as it might apply to electronic surveillance directed against U.S. citizens or permanent resident aliens, so long as the capability of the United States to obtain necessary foreign intelligence is preserved. Question 2. Would you favor expanding such legislation to require warrants for electronic surveillance of Americans abroad, as well as in the United States? Answer. Inasmuch as the full implication of an extension of a warrant requirement to overseas activities of Americans is not clear to me at this time, I am now prepared to indicate my support for such an enlargement in the scope of the proposed legislation. Question 3. Would you favor expanding the proposed electronic surveillance legislation to require warrants in foreign intelligence cases for other intrusive investigative techniques such as mail opening and surreptitious entries when directed against Americans, either at home or abroad? Answer. I would want to carefully consider any expansion of the proposed electronic surveillance legislation to cover mail opening and surreptitious entry. Question 4. Do you think that electronic surveillance of Americans for foreign intelligence purposes at home or abroad should be limited to those instances where there is substantial evidence that the American has engaged in criminal activities? Answer. It is my understanding that no such absolute standard or limitation would have been established by S. 3197 as reported by the Committee in the last Congress, and the adoption of such an absolute standard or limitation might well be undesirable in light of the inadequacy of existing criminal laws as they relate to activities that are of legitimate foreign intelligence interest. It should be noted with regard to this question that, generally speaking, the prevention and prosecution of crime are not the purposes of foreign intelligence surveillances, whether electronic or other. Question 5. For the purpose of obtaining a warrant, would you be willing to report to a Federal judge the facts determining the Agency's belief that elec tronic surveillance should be conducted against an American living abroad? Answer. This question could only be answered in the context of a particular case and in relation to a particular statutory requirement government governing the scope and detail of the information to be submitted in support of a warrant application. As an essential prerequisite, I would want to be assured that the court would provide security safeguards for the information to be submitted that would be satisfactory to the executive branch. If such assurances could not be given, it might be necessary to forego an electronic surveillance rather than to risk compromise of the source in order to obtain a warrant. II. LEGAL AUTHORITY A. In February of 1976, President Ford issued Executive Order 11905 on United States foreign intelligence activities. The Executive Order was issued in order to "clarify the authority and responsibilities of the intelligence agencies." Would you tell the Committee your views of the Executive Order, particularly as it relates to the following issues: Question 1. Is an Executive Order which can be changed at the will of the President and which provides no penalties for its violation, sufficient to define the varying missions of the intelligence agencies and to fix firm limits on their activities? Answer. The intelligence activities of the United States have been conducted for thirty years on the basis of Executive Orders and National Security Council Intelligence Directives, as well as certain statutes. The Executive Orders have the effect of law in terms of their directive control of intelligence activities. Possibly, additional legislative action is needed to define the missions of intelligence agencies and fix firm limits on their activities, but I consider any specific comments by me must necessarily be deferred until I have more complete knowledge of the manner in which the existing system is operating. Question 2. While the DCI is to provide guidance on the relationship between tactical and nautical intelligence, under the Executive Order the DCI does not have any responsibility for tactical intelligence. Previous DCIS have had the right to review the allocation of all intelligence resources, including tactical intelligence. Do you believe that the Executive Order has an undesirable effect of weakening the DCI's authority in this area? Answer. Tactical intelligence is an essential and integral element of the effectiveness of military forces in the field, and should be addressed in terms of the needs of the military forces. The DCI, on the other hand, is primarily involved with matters of national intelligence. The line dividing national and tactical intelligence is not clear but, on balance, I consider that the provision in Executive Order 11905 is appropriate. The DCI and the NSC Policy Review Committee (which has assumed the functions of the Committee on Foreign Intelligence established by E.O. 11905) are charged to provide guidance on the relationship between tactical and national intelligence, and thus are responsible for insuring that unnecessary overlap and duplication does not occur and that all programs are compatible with security and foreign policy. The important thing is to assure that the potentialities of mutual support between national and tactical assets are maximized, and in this I see the DCI as having a role. Question 3. Under the Executive Order, the DCI is to "ensure the development and the submission of a national intelligence budget." At the same time, the Committee on Foreign Intelligence, now the Policy Review Committee (PRC), is to "control budget preparation of the national intelligence program," and the Secretary of Defense has the responsibility to "direct, fund and operate" the NSA. How can these potentially contradicting charges be resolved? Answer. The manner in which the National Foreign Intelligence Program budget for FY 1978 was developed provides the answer to this question. The Intelligence Community Staff was charged in the Executive Order to provide staff support to the Committee on Foreign Intelligence (CFI). The DCI used his Deputy for the Intelligence Community, who heads the Intelligence Community Staff, to spearhead development of the budget and submit to the CFI. The CFI held 20 sessions during which the Community program and budget were examined in great detail and many issues identified and settled. The Deputy Secretary of Defense, as a member of the CFI, participated in this review. The agreed-upon budgets for the intelligence elements of the Department of Defense, including that for NSA, were included in the DOD budget. The system involved close working relationships among the intelligence Community Staff, the intelligence staff of the Secretary of Defense, and the intelligence program managers, but what the question describes as "potentially contradicting charges" did not prove to be such in actual practice. Question 4. What changes would you recommend in the present Executive Order? Answer. The President has directed a complete review of the mission and structure of American intelligence, including an assessment of the adequacy of Executive Order 11905, for which I will have a major responsibility. I suggest it would be appropriate for me to await that review before making specific proposals concerning possible changes in the Order. B. The authority of the CIA to engage in certain activities rests on directives issued by the National Security Council, called National Security Council Intelligence Directives or NSCIDS. These NSCIDS have in the past been referred to as the CIA's secret charter and were withheld not only from the public but also, until recently, from Congress. Question 1. If these NSCIDs are revised or new NSCIDS are issued, will you provide these to the Committee as your predecessor has done? Answer. The NSCIDS previously provided to the Congress were made available through the NSC apparatus, and the DCI has no authority to make such release on his own. I would be prepared to support a Committee request for NSCIDS which relate to the Committee's area of responsibility. Question 2. Do you believe that the oversight committees of Congress should be consulted during the preparation or revision of these NSCIDs? Answer. The NSCIDS are internal Executive Branch documents prepared at the behest of the President. Whether, or the extent to which, oversight committees of the Congress might be consulted concerning such directives prior to their issuance is a matter for Presidential determination. Congressional access after the directives have been promulgated would, in my view, be the better course. C. CIA practices are also affected by directives issued by other persons, such as the DCI and Policy Review Committee (PRC). Question. Will you provide to the Committee all such directives and modifications of directives, including DCIDS and directives from the PRC? Answer. I will provide the Committee those directives which are under my control. The DCIDS are my responsibility, and I will provide them under appropriate security safeguards. Since the PRC is an element of the NSC, I believe the NSC would be the appropriate authority for deciding to release or withhold the PRC directives. D. As Director of Central Intelligence, your advice may be sought on the question of charters for the intelligence agencies. The 1947 National Security Act, the CIA's statutory charter, has been termed inadequate in a number of areas. At the present time, the National Security Agency and the Defense Intelligence Agency have no statutory charters. The FBI's authority to engage in domestic intelligence activities has been questioned. Question 1. Should a new CIA charter explicitly authorize covert action? |